AUSTRALIA

Summary of law reform necessary to achieve full prohibition

Prohibition is still to be achieved in the home, schools, penal institutions and alternative care settings.

The near universal acceptance of corporal punishment in childrearing means that legal provisions against violence and abuse are not interpreted as prohibiting corporal punishment and provisions confirming a right to use “reasonable” punishment provide a legal justification for the use of corporal punishment. The following legal defences for the use of corporal punishment should be repealed/amended and the law clarified to state that all forms of corporal punishment are unlawful: New South Wales Crimes Act (s61), Northern Territory Criminal Code Act (s27), QueenslandCriminal Code Act 1899 (s280), South AustraliaCriminal Law Consolidation Act 1935 (s20), TasmaniaCriminal Code Act 1924 (s50), Western Australia Criminal Code 1913 (s257) and the relevant common law defences in Australian Capital Territory and Victoria.

Explicit prohibition should be enacted in relation to all education settings, including public and private schools, in Queensland. In Western Australia, explicit prohibition should be enacted in relation independent schools, in addition to repeal of the provisions for corporal punishment in the Country High School Hostels Authority Act Regulations 1962.

Explicit prohibition of corporal punishment should be enacted in relation to disciplinary measures in detention centres in Australian Capital Territory and Western Australia.

Explicit prohibition should also be enacted of all corporal punishment in all forms of alternative care in Australian Capital Territory and Western Australia.

Current legality of corporal punishment

Home

Corporal punishment in the home is regulated at state level, and is lawful throughout Australia under the right of “reasonable chastisement” and similar provisions (Australian Capital Territory under common law; Northern Territory Criminal Code Act s27; Queensland Criminal Code Act 1899, s280; South Australia Criminal Law Consolidation Act 1935, s20; Tasmania Criminal Code Act 1924, s50; Western Australia Criminal Code 1913, s257; Victoria under common law rule).

Under s61AA of the New South Wales Crimes Act, as amended in 2001, physical punishment by a parent or caregiver is considered unreasonable if the force is applied to a child’s head or neck, or the force is applied to any part of the body in such a way as to cause, or threaten to cause, harm to the child which lasts more than a short period; in such cases the defence of “lawful correction” does not apply. In 2010, the NSW Government reviewed section 61AA and recommended that it be retained.

Reporting to the UN Committee on the Rights of the Child in 2012, the Australian Government stated that it has not taken any steps towards prohibiting all corporal punishment, but that it does promote positive parenting (9 May 2012, CRC/C/AUS/Q/4/Add.1, Written replies to List of Issues, para. 53).

Schools

In 2012, the Australian Government stated that it “does not endorse” corporal punishment in schools and that in 2011 it launched the National Safe Schools Framework which promotes children’s safety from violence in schools and endorsed by all education ministers (9 May 2012, CRC/C/AUS/Q/4/Add.1, Written replies to List of Issues, para. 66). However, the Framework is silent on the issue of corporal punishment.

Legally, corporal punishment in schools is regulated at state level and is lawful in many schools. It is prohibited in government and independent schools in Australian Capital Territory (Education Act 2004, s7), New South Wales (Education Act 1990, s3 and s47; Children (Education and Care Services) National Law (NSW) No 104a), Tasmania (Education Act 1994, s82A; Education and Care Services National Law (Application) Act 2011) and Victoria (Education and Training Reform Act 2006, s4.3; Education and Training Reform Regulations 2007, reg14; Education and Care Services National Law Act 2010). It is prohibited in government schools in Western Australia (School Education Regulations, s40), but the use of force “by way of correction” is lawful for schoolteachers under s257 of the Criminal Code Act and provisions for caning of boys in the Country High School Hostels Authority Act Regulations 1962 have yet to be repealed; prohibition is included in the Education and Care Services National Law Bill 2011 as at June 2012 awaiting assent.

In Queensland, corporal punishment by schoolteachers is lawful under the provisions for reasonable force “by way of correction, discipline, management or control” in s280 of the Criminal Code Act. In Northern Territory corporal punishment is prohibited in the Education and Care Services (National Uniform Legislation) Act 2011, in force January 2012. In South Australia, provisions for corporal punishment were removed from the Education Regulations in 1991, but it was not prohibited: prohibition is now included in the Education and Early Childhood Services (Registration and Standards) Act 2011.

Penal system

Corporal punishment is prohibited as a sentence for crime in all states and territories.

Corporal punishment is unlawful as a disciplinary measure in penal institutions in New South Wales (Children (Detention Centres) Regulations 2005, s50), Northern Territory (Youth Justice Act, s153), Queensland (Juvenile Justice Regulations 2003, s17), South Australia (Family and Community Services Regulations 1996, s7), Tasmania (Youth Justice Act 1997, s132) and Victoria (Children, Youth and Families Act 2005, s487). In Australian Capital Territory, corporal punishment is not among permitted disciplinary measures in the Children and Young People Act 2008 but is not explicitly prohibited. It is not prohibited in Western Australia.

In residential centres, corporal punishment is prohibited in New South Wales (Children and Young Persons (Care and Protection) Regulation 2000, s35), Queensland (Child Protection Act 1999, s122), South Australia (Family and Community Services Regulations 1996, s13) and Australian Capital Territory (Children and Young People Act 2008, s741). It is lawful in the Northern Territory under provisions for the use of force “to discipline, manage or control” a child (Criminal Code Act, s27), in Tasmania under the authority to use force “by way of correction” (Criminal Code Act, s50), in Victoria under common law and in Western Australia under the authority to use force “by way of correction” (Criminal Code Act s257). Australian Capital Territory allows for “reasonable” discipline (Children and Young People Act 1999, s366) and does not prohibit corporal punishment.

In foster care, corporal punishment is prohibited in New South Wales (Children and Young Persons (Care and Protection) Regulation 2000, s35), Queensland (Child Protection Act 1999, s122), South Australia (by licensing requirements) and Australian Capital Territory (Children and Young People Act 2008, s741). It is lawful in the Northern Territory under provisions for the use of force “to discipline, manage or control” a child (Criminal Code Act, s27), in Tasmania and Western Australia under the authority to use force “by way of correction” (respectively Criminal Code Act s50 and Criminal Code Act s257) and in Victoria under common law.

As a result of legal reform in 2011/2012, explicit prohibition is also to be found in article 166 of the Education and Early Childhood Services (Registration and Standards) Act 2011 in South Australia, the Education and Care Services (National Uniform Legislation) Act 2011 in Northern Territory, the Education and Care Services National Law (Application) Act 2011 in Tasmania, and the Education and Care Services National Law Act 2010 in Victoria and the Children (Education and Care Services) National Law (NSW) No 104a in New South Wales. In Western Australia it is prohibited in the Education and Care Services National Law Bill 2011, as at June 2012 awaiting assent.

Prevalence research

A 2012 civil society report to the Committee on the Rights of Persons with Disabilities documents evidence of the use of “restrictive practices”, including being thrown to the ground and pinned down, solitary confinement and chemical restraint, against children with disabilities in both mainstream and special schools. It also documents an incident in which a carer in a residential institution punished a child by tying him to the toilet and hitting him. (Australian Centre for Disability Law et al (2012), Disability Rights Now: Civil Society Report to the United Nations Committee on the Rights of Persons with Disabilities)

The Education Department of Western Australia approved confining 19 primary school children, most of whom had intellectual disabilities, in unfurnished “time-out” rooms in 2012. (Reported in The Sunday Times, 12 January 2013)

In a 2012 online poll of more than 12,000 people, 92.47% replied “no” to the question “should smacking a child be a criminal offence?” (Reported in The Daily Telegraph, 4 February 2012)

In a 2011 online poll of more than 4,000 people, 85% of parents admitted smacking their children. (Reported in news.com.au, 12 September 2011)

A 2009 study looked at all identified child homicides in New South Wales from 1991 to 2005 (165 homicides by 157 offenders). It found that the most common cause of death was physical punishment, which accounted for 36% (59 deaths) over the 14 year period. In almost three in four cases, children had been beaten, thrown or shaken to death by their parents/carers. Children below the age of one are more likely to be killed than older children. The average age of the 59 children killed through physical punishment was 1.5 years. The researchers, backed by the Australian Childhood Foundation, have called for corporal punishment to be prohibited: “More lives could be saved by measures that reduce the incidence of child abuse, including the prohibition of corporal punishment of children.” (Nielssen, O. et al. (2009), “Child homicide in New South Wales from 1991 to 2005”, Medical Journal of Australia, 190 (1), 7-11)

A review of “domestic discipline” cases under section 280 of the Criminal Code  which allows parents to use “reasonable force” on their children  was undertaken by the Department of Justice and Attorney-General in Queensland. The results were tabled in Parliament in November 2008. Of the 134 cases of “excessive discipline” in 2006-7, more than half (80 cases) involved the use of implements, including cattle prods. In 85 cases children were hit on the head, in 36 cases they were punched, in 13 kicked. (Department of Justice and Attorney General (2008), Review of Section 280 of the Criminal Code)

A federal government funded survey of over 500 adults by the Australian Council of State School Organisations found that while most believed discipline in schools is too lax, few supported a return to corporal punishment. (Reported in The Herald Sun, 10 October 2008)

The Victoria Education Department investigated 187 cases of “inappropriate discipline” in childcare centres between 2007 and 2009, including “smacking”, despite corporal punishment being prohibited. (Reported in The Herald Sun, 11 April 2011)

A survey of parents in Queensland, conducted by the Parenting and Family Support Centre, University of Queensland, and reported in 2007, found that 71% smacked their children occasionally. When asked how likely parents were to use smacking as a punishment, 43% said they were likely or very likely to give a single smack with their hand; 10% said they were likely or very likely to spank their child more than once with their hand or another object. (Reported in Herald Sun, 19 May 2007)

Telephone interviews with a representative sample of 720 adults aged 18+ were carried out in 2006 by Quantum Market Research on behalf of the Australian Childhood Foundation and the National Research Centre for the Prevention of Child Abuse at Monash University. The research found that 45% of respondents believed it was reasonable to leave a mark on a child as a result of physical punishment (representing a decrease from the 55% found in similar research in 2002). One in 10 believed that it was appropriate to use implements such as canes, sticks, belts, or slippers to punish a child (representing an increase in support for the use of implements compared with the 4% figure found in the 2002 research); one in seven (14%) supported the use of a wooden spoon. Two out of five (41%) believed that smacking a child is effective in shaping his or her behaviour, while one in ten believed that smacking a teenager is an effective way of discipline. When presented with the statement that it is sometimes necessary to smack a naughty child, 69% agreed, representing a decline in support for corporal punishment when compared with similar research in 2002 (75%). (Tucci, J.et al (2006), Crossing the Line: Making the case for changing Australian laws about the physical punishment of children, Ringwood, Victoria, Australia: Australian Childhood Foundation)

A Senate inquiry into institutional and out-of-home care for children in Australia during the twentieth century found that punishments included beatings with straps, canes, cricket bats, and bunches of keys, being forced to perform additional and often repetitive tasks, food rationing, forced immobility for long periods, isolation and humiliation. Children were punished for “offences” including talking during mealtimes, laughing, not standing still, being left-handed, bedwetting and running away. (Senate Community Affairs References Committee (2004), Forgotten Australians: A report on Australians who experienced institutional or out-of-home care as children)

Recommendations by human rights treaty bodies

Committee on the Rights of the Child

“While welcoming the State party’s efforts to implement the concluding observations on its previous report (CRC/C/15/Add.268), it is concerned that some of the recommendations contained therein have not been fully addressed.

“The Committee regrets that notwithstanding its previous recommendation (CRC/C/15/Add.268, para. 36), corporal punishment, in the home and some schools and alternative care settings, remains lawful throughout the State party under the label of so-called ‘reasonable chastisement’.

“The Committee reiterates its previous recommendation (CRC/C/15/Add.268, para. 36) that the State party:

take all appropriate measures to explicitly prohibit corporal punishment in homes, in public and private schools, detention centres and alternative care settings in all states and territories;

strengthen and expand awareness-raising and education campaigns, in order to promote positive and alternative forms of discipline and respect for children’s rights, with the involvement of children, while raising awareness about the adverse consequences of corporal punishment.

“In addition, the Committee recommends that the State party:

ensure that ‘reasonable chastisement’ is not used as defence to a charge of assault of a child;

ensure the training of all professionals working with or for children, including law enforcement, medical, education professionals, to promptly identify, address and report all cases of violence against children;

consider undertaking an independent study on the probable linkages between domestic violence and corporal punishment.

“The Committee is gravely concerned at the high levels of violence against women and children prevailing in the country and notes that there is an inherent risk that the coexistence of domestic violence, lawful corporal punishment, bullying, and other forms of violence in the society are interlinked, conducing to an escalation and exacerbation of the situation….

“Emphasising the State party’s obligations under articles 19 and 37(a) of the Convention and the Committee’s general comment No. 13 (2011) on the right of the child to freedom from all forms of violence, the Committee urges the State party to develop federal legislation as a general framework to reduce violence and promote the enactment of similar and complementary legislation at state and territory level. It also recommends that the State party adopt a specific plan of action to make operational the provisions under the National Plan to Reduce Violence against Women and Their Children (2010-2022), including such measures as: …

e) monitoring the implementation of anti-violence measures (including corporal punishment and bullying in schools, through the Internet, and in other settings) within specific plans and as part of the 3-year action plan of the National Framework for Protecting Australia’s Children.”(28 August 2012, CRC/C/AUS/CO/4, Concluding observations on fourth report, paras. 7, 8, 43, 44, 45, 46 and 47)

“The Committee notes with satisfaction that most of its concerns and recommendations (CRC/C/15/Add.79) made upon the consideration of the State party’s initial report (CRC/C/8/Add.31) in 1997 have been addressed. However, it notes that some concerns and recommendations have been insufficiently or partly addressed regarding, inter alia, ... corporal punishment...

“The Committee notes with concern that corporal punishment in the home is lawful throughout Australia under the label “reasonable chastisement” and other similar provisions in states’ legislation. Furthermore, the Committee is concerned that while corporal punishment has been prohibited in government schools and some private ones in most states and territories, it is still lawful in many private education institutions and in both government and private schools in South Australia and the Northern Territory.

“The Committee recommends that the State party:

take appropriate measures to prohibit corporal punishment at home and in public and private schools, detention centres and all alternative care settings in all states and territories;

strengthen awareness-raising and education campaigns with the involvement of children in order to promote positive, non-violent forms of discipline and respect for children’s rights, while raising awareness about the negative consequences of corporal punishment.”

(20 October 2005, Concluding observations on second and third report, CRC/C/15/Add.268, paras. 5, 35 and 36)

“The Committee expresses its concern about the lack of prohibition in local legislation of the use of corporal punishment, however light, in schools, at home and in institutions; in the view of the Committee this contravenes the principles and provisions of the Convention, in particular articles 3, 5, 6, 19, 28 (2), 37 (a), (c), and 39. The Committee is also concerned about the existence of child abuse and violence within the family.

“The Committee suggests that the State party take all appropriate measures, including of a legislative nature, to prohibit corporal punishment in private schools and at home. The Committee also suggests that awareness-raising campaigns be conducted to ensure that alternative forms of discipline are administered in a manner consistent with the child’s human dignity and in conformity with the Convention. The Committee also believes that cases of abuse and ill-treatment of children, including sexual abuse within the family, should be properly investigated, sanctions applied to perpetrators and publicity given to decisions taken. Further measures should be taken with a view to ensuring the physical and psychological recovery and social reintegration of the victims of abuse, neglect, ill-treatment, violence or exploitation, in accordance with article 39 of the Convention.”(10 October 1997, CRC/C/15/Add.79, Concluding observations on initial report, paras. 15 and 26)

Committee Against Torture

“The Committee notes that corporal punishment of children is not explicitly prohibited in all States and Territories and may still be applied as ‘reasonable chastisement’.

The State party should adopt and implement legislation banning corporal punishment at home and in public and private schools, detention centres and all alternative care settings in all States and Territories.”(22 May 2008, CAT/C/AUS/CO/1, Concluding observations on third report, para. 31)

Universal Periodic Review

Australia was examined in the first cycle of the Universal Periodic Review in 2011 (session 10). The following recommendation was made (24 March 2011, A/HRC/17/10, Report of the working group, para. 86(75)):

“Introduce a full prohibition of corporal punishment within the family in all states and territories (Russian Federation)”

The Government rejected the recommendation, stating: “While Australia has programs in place to protect children against family violence, and laws against assault, it remains lawful for parents in all States and Territories to use reasonable corporal punishment to discipline their children.” (31 May 2011, A/HRC/17/10/Add.1, Report of the working group: Addendum).

Examination in the second cycle is scheduled for 2015.

Legal status of corporal punishment of children in Australia

KEY:

= Corporal punishment prohibited

= Corporal punishment permitted

= Corporal punishment status unknown

= Click for additional information

Province/territory

Prohibited in the home

Prohibited in schools

Prohibited in the penal system

Prohibited in alternative care settings

As a sentence for crime

As a disciplinary measure in penal institutions

Australian Capital Territory

New South Wales

Northern Territory

Queensland

South Australia

Tasmania

Victoria

Western Australia

SOME

SOME

This analysis has been compiled from information from governmental and non-governmental sources, including reports on implementation of the Convention on the Rights of the Child. Every effort is made to maintain its accuracy. Please send us updating information and details of sources for missing information: info@endcorporalpunishment.org.